- (1.) R. K. Rastogi, J. This is an application under Section 482, Cr. PC. for quashing the order of the learned Addl. Sessions Judge/ftc Court No, 26, Allahabad dated 6. 11. 07 passed in ST. No. 2 of 2006, State v. Sunil Kumar Kesharwani.
(2.) THE facts relevant for disposal of this application are that the aforesaid Sessions Trial under Section 18/20 N. D. P. S. Act is pending against the applicant and the aforesaid case was listed evidence on 5. 10. 07. On that date two prosecu tion witnesses named Surendra Nath Dubey and Amrit Lal Pandey were present in the Court. THEir examination-in-chief was recorded in the Court but since the (earned Counsel for the accused applicant did not appear for their cross-examina tion, the opportunity of cross- examination was closed and the witnesses were discharged. THEreafter the applicant moved an application on 12. 10. 07 for recall ing the above witnesses alleging that on 5. 10. 07 his Counsel was busy in the Court of C. J. M. in connection with another case and so he could not get time to cross-examine the aforesaid witnesses and his application was allowed by the trial Court wcte order dated 12. 10. 07 with this provision that the applicant should deposit Rs. 2, 500/- as fine. THE applicant moved an application for recalling that order regarding deposit of fine. That application was rejected by the trial Court vide order dated 6. 11. 2007 and therefore the applicant has filed this application under Section 482, Cr. P. C. Heard the learned Counsel for the applicant and the learned A. G. A. for the State. It is to be seen that there was no justification for imposition of fine when the Counsel for the applicant could not appear in the Court being busy in another Court. Full particulars of the case in which the Counsel of the applicant was busy in the Court of C. J. M. on 5. 10. 07 have been mentioned in the detailed order of the C. J. M, passed in criminal Case No. 200/xii/07 in which the prosecutrix and her so called husband with whom she had allegedly performed her marriage and against whom a case under Sections 363 and 366, I. P. C. was pending, had ap peared in the Court and the applicant's Counsel was appearing for father or the prosecutrix in that case and there was hot contest between the parties on the points whether the order of this Court in the writ petition had been complied with or not and which party was liable for its so called violation and to whom the interim custody of the prosecutrix should be given till compliance of the direction of this Court. The applicant's case is that his Counsel remained busy in that case in the Court of the C. J. M. and so he could not appear to cross-examine the witnesses in the Court of the Addl. Sessions Judge; and the detailed order passed by the C. J. M. in that case on 5. 10. 07 running in four pages, a copy of which has been filed as Annexure I, is itself clear to show the hotly contested position of the case and the observation of the learned Addl. Sessions Judge that the matter was between the C. J. M. and the I. O. only is not justified. There is sufficient force in his contention.
(3.) UNDER these circumstances, I am of the view that the order passed by the trial Court for imposition of fine of Rs. 2, 500/- is not justified and it should be set aside. However, the applicant must bear the travelling expenses of P. Ws. 1 and 2 for coming to the Court from the places where they are at present residing and for going back to their places of residence as well as for their diet money for appear ing in the Court. The application under Section 482, Cr. P. C. is therefore, partly allowed.;